May 08, 2007

The Foggo-Wilkes Leaks

by emptywheel

Unlike Monday's earlier filing, there is no snark in the government's response to Brent Wilkes' motion to dismiss his indictment because of pre-indictment leaks. Instead, for the purposes of the case, there's just a simple logical argument:

Before Wilkes lawyer Geragos' complaint, DOJ had already started an investigation into the pre-indictment leaks.

Note: the timing on this is a bit fishy. The filing says only that the San Diego USA Office forwarded the Geragos' February 1 allegations to main DOJ "several weeks" before Geragos' formal complaint, which was April 23. So it's possible that SDUSAO didn't do it immediately upon receiving the letter.

On November 29, 2005, one of Wilkes' prior lawyers acknowledged that Wilkes was named in the Cunningham indictment.

Several of the press reports cited by Geragos are not incriminating (for example, the could be based on the earlier revelations about Wilkes mapped onto the Cunningham indictment).

For the key leaks (specifically, that government officials had shown draft indictments to reporters, that Lam had set a deadline for the indictments, and that Main DOJ was worried about the leaks), Geragos has provided no substantiation--and the substance of the leaks was not published.

That's the legal argument. But I'd like to go back and review the whole back and forth to see if we can get to what happened with the leaks (the ones from January, rather than the ones going back to 2005).

Geragos' February 1 Letter and Lam's Response

The issue started on February 1, when Wilkes lawyer Mark Geragos sent Carol Lam a letter memorializing a conversation he had with AUSA Sanjay Bhandari. Geragos quoted from two newspaper articles that, he said, showed "wholesale leaking of matters occurring before the grand jury."

The first cited two federal officials saying the SD USAO was close to seeking an indictment for Wilkes. The article described the first source this way.

The source, who has intimate knowledge of the case and spoke on
condition of anonymity, said a preliminary draft indictment is under
review by "many eyes on what is going to be proposed to the grand
jury," the Times reported.

And it specified that the second source was from another agency.

Another official who is with a different agency but is also familiar with the case said an indictment is "imminent,"

The second article Geragos cited in his letter also relied on two government officials.

Federal prosecutors are preparing to seek indictments against a former
top CIA official and a San Diego defense contractor linked to the
bribery scandal that sent former U.S. Rep. Randy "Duke" Cunningham to
prison, two government officials familiar with the investigation said
Wednesday.

But the article later suggested that these government officials were not prosecutors.

Prosecutors in San Diego would not comment about an ongoing investigation.

Allison Hoffman, the author of this second article, would write a detailed description of the alleged crimes just six days later that clearly relies at least partly on CIA sources. That second Hoffman article again cited the two government officials--and others--and broadened the list of those who refused to comment on the case:

Those officials and others spoke on condition that they not be
identified because the charges have not been finalized and because CIA
contracting is classified. Justice Department and law enforcement
officials in San Diego and Washington declined to comment.

In addition to those two articles (the second Hoffman article post-dates Geragos' letter), Geragos describes another leak.

As I told Mr. Sanjay [note Geragos may be deliberately trying to rile Bhandari, because he misspells his name elsewhere in the letter in addition to referring to him here as Mr. Sanjay] during our phone call today, it has been brought to my attention that yet another reporter who today claims to have been shown two separate indictments of Mr. Wilkes. One in the Foggo matter and one related to Thomas Kontogiannis. In addition, this reporter was apparently told prosecutors wanted to arrest Mr. Wilkes possibly as early as today on one of those indictments.

But this journalist got the story wrong--not only was Wilkes not arrested on February 2, but Kontogiannis was not indicted with Michael and Wilkes. The latter mistake--predicting an indictment for Kontogiannis--is one Hoffman's sources made too.

This was a point Carol Lam made in her response to Geragos--she requested more details about the journalist spreading leaks with wrong information.

We invited you to provide any specific information you have, including contact information for the reporter who claimed that he had seen copies of indictments, but had his facts wrong.

The March 19 Hearing

The leaks to journalists become a central issue in the March 19 hearing, which was ostensibly about arranging the sharing of classified information. Against the background of the discussion of secrecy associated with classified information, Judge Larry Burns scolds the government team about leaks (the AUSA here is Halpern).

Halpern: What I can say is it has nothing from prosecution team. There have been no leaks [of classified information]. There certainly have been no suggestions that any information that we had that we're under control of has been leaked.

The Court: I disagree, Mr. Halpern. Look at their Exhibit B to the motion.

Burns goes on to read from the first Hoffman article (though he did not read the line noting that prosecutors would not comment). Burns labels that leak as a violation of grand jury secrecy rules.

You and I both know that's a violation of Rule 6. Whoever did that shouldn't have done it.

Mr. Halpern: Clearly your honor. But I don't think there's an indication that that's a member of the prosecution team.

The Court: It's somebody associated with the government that's forecasting this for the media and telling them what's going on in front of the grand jury.

Mr. Halpern: There are many people associated with the government. I'm not going to quarrel on the Court's point. I think you're making a valid point.

Burns returns to the issue again.

The Court: Somebody ignored the conventions of federal criminal practice and Rule 6 in the two disclosures that were made. Somebody did.

[snip]

Again, I'm not assuming that this has anything to do with you or Mr. Forge or Ms. Chu. I'm assuming it was somebody else who was anxious to get a headline or do something that led to this.

I take your point, Mr. Halpern, that whoever it was didn't disclose confidential secret national security information, but it was still--it's a pretty egregious violation to say, "here's what's going on in front of the grand jury, and expect an indictment in the next couple of weeks."

Mr. Halpern: Your honor, there's no way I will defend that action be whoever it was made, and I don't intend to.

All of this makes something crystal clear to the defense attorneys: Burns is pissed about the leaks, and they can use that to their advantage. Which Geragos then does.

Could I also address one other area, which is the leaks and the idea of the stand-alone order.

I had suggested in a letter prior to my client's indictment, because I was so irate at the time and I've mentioned before, that I wanted all of the people on the prosecution team, however we want to define that, to file declarations under penalty of perjury.

[snip]

As this court well knows, the source privilege is not met with a whole lot of success in the federal courts anymore. Unfortunately, in the state courts it's still there. And you can't get to the bottom of this. Here we can get to the bottom of this. Clearly, as they've conceded, it did not come from the defense. I think it potentially is Brady or Giglio information as to who it is who willingly will go out and violate 6(e).

And the way to find out is to get these people to put their declarations under penalty of perjury and bring in the reporters and put them under oath and let them say who it was who disclosed the information.

Note Geragos' move here. He says that, because this is a federal case, the reporters privilege does not hold up, so the Court can order the journalists to reveal their sources.

At this, one of Foggo's lawyers, Randolph Teslik pipes up to note that he, too, learned the details of the indictment from a reporter.

Just for the record, we learned the details of the indictment from a telephone call from a reporter before the indictment was returned as well. We didn't put that in our motion. But given the nature of the representations and the Court's concerns here about 6(e), I think it's important that the record reflect that we got the same telephone call as Mr. Geragos.

The hearing as a whole served to get Burns riled up about leaks to reporters and to get Halpern to cede the seriousness of the leaks. Which Geragos then uses to set up his May 23 motion to have the entire indictment dismissed because of the leaks.

Geragos' May 23 Motion to Dismiss the Indictments

Foggo's lawyers file a motion regarding the leaks on May 23, too. But they don't ask for a dismissal. They only ask for a thorough investigation. But Geragos, as is his wont, goes big, asking to have all the charges dismissed. I don't think he really hopes this will work. But he does use it to foreground the Lam dismissal, suggesting Lam leaked the information personally to pressure main DOJ to approve the charges.

Before indictments were returned against Mr. Wilkes, news articles cited government officials as the source of secret grand-jury material. Those government leaks to reporters disclosed secret matters before the grand jury violating of Federal Rule of Criminal Procedure 6(e), including the targets of the grand jury, the nature and focus of the investigation, and the likelihood that an indictment would be returned and when.

During the grand jury proceedings, counsel for Mr. Wilkes regularly received phone calls from reporters relaying specific information about the pending indictments. The reporters had even seen drafts of the indictments weeks before the indictments were returned. The government’s illegal disclosure of secret grand jury matter to the press was not accidental or haphazard. It was part of a deliberate campaign by the former United States Attorney, Carol Lam, to use Mr. Wilkes and the other defendants here in her political squabble with the Justice Department’s main office in Washington D.C. The United States Attorney used the leaks to create a public atmosphere that compelled the grand jury to return indictments and present Main Justice with a fait accompli, a gesture of defiance by Carol Lam as she was forced out of office.

There are important points that Geragos makes in his statement supporting the motion. First, he uses Halpern's concessions from the March 19 hearing to put the blame back on the prosecution team.

As the prosecutors have conceded in open court, these leaks can only have been from members of the prosecution team.

Second (though I'm presenting this out of order), he describes hearing from six different reporters, two of whom have printed all the information shared with Geragos, his colleagues, or Wilkes. He then explains he has attached the stories representing these leaks.

At least six reporters telephoned me, my co-counsel, or my client. At least two of those reporters published all or part of the information disclosed to them by government officials in violation of Rule 6(e). Attached hereto as Exhibit 2 are true and correct copies of newspaper articles from a few of those outlets as authored by some of those reporters disclosing secret grand jury matters illegally disclosed to them by government officials.

As the government points out in its response, some of these articles could be based entirely on Wilkes' previous lawyers' own revelations coupled with reading the Cunningham indictment. Further, two of these articles are those described above in connection with the February 1 letter, which report that the prosecution team would not comment. Also, it includes the article apparently relying on CIA sources. In other words, the visible evidence Geragos supplies doesn't really prove that the prosecution team was behind the leaks--one point the government made in its response.

I'm curious, though, about the reference to Wilkes. Because I'd be deeply curious about any so-called leaks going directly to Wilkes. Was Wilkes, for example, the one who received the erroneous leak referenced in Geragos' February 1 letter?

The leaks for which Geragos provides evidence don't really support his larger argument to dismiss the case. But Geragos uses another leak--one not apparently reported--to implicate Lam in the leak.

A few days before the indictments were unsealed, I received a telephone call from a local reporter who told me that the United States Attorney would ask the Grand Jury to issue the indictments against Mr. Wilkes the following day, and described, in detail, the contents of those indictments. When I asked the reporter about the timing of the indictments, the reporter told me that United States Attorney, Carol Lam, wanted the indictments issued and announced before her departure date the following Thursday, two days later.

This is the basis, presumably, for Geragos' claim that Lam was behind the leaks.

Finally, Geragos reports another leak that also has not been reported on--and this one comes from Main DOJ.

Around the same time the print reporters were disclosing to me detailed knowledge of the draft indictments, and stating that government officials were showing them copies of draft indictments, a television reporter told me that an attorney at the Justice Department main offices in Washington D.C. (“Main Justice”) had disclosed that Main Justice believed that it could no longer exercise its normal supervisory role because the leaks of the indictment “would now make any action taken by Main Justice appear to be political”.

This is the final necessary piece for Geragos' argument, because it suggests that the leaks prevented Main DOJ from fulfilling their normal supervisory role in the case. The implicit message here is that Main DOJ would have prevented the indictments, if only someone (and Geragos alleges that someone is Lam) leaked all the details in the case. Of course, simple logic would tell you that the burgeoning USA Purge--and not the leaks in San Diego--limited Main DOJ from intervening too obviously in the case. But the leaks provided a convenient excuse--presumably for a member of the clique back in DC--to taint the indictments.

Government's May 7 Response

Which is what brings us to the real anger evident in yesterday's government response to Geragos' motion. While the rest of the response simply shows that almost all of the evidence Geragos relies on is either irrelevant or wrong, the last passage of the response makes strong insinuations that the most important pieces of Geragos' argument--those touching on Lam's involvement and Main DOJ's response to the leaks--lack corroboration.

In
the weeks and months since Wilkes’s counsel sent his February 1st
letter, made his representations at the March 19th hearing, and filed
his April 23rd declaration, not a single article or story has been
published or broadcast that corroborates his representations regarding:
(1) the disclosure to the media of actual draft indictments; (2)
frustration at Main Justice over a perceived inability to exercise its
normal supervisory role over these cases; or (3) a reporter’s
pre-indictment awareness of the detailed contents of the indictments.

Under the circumstances, Wilkes’s counsel’s declaration simply
raises more questions than it answers. For example, why, in the most
publicized case in this district, and one that has generated national
interest, did no reporter report any of the events described in
paragraphs 5 and 6 of Wilkes’s counsel’s declaration?

The insinuation is clear. The leak that implicated Lam and the one that reflect hesitation at Main DOJ were never published. They were simply shared with Geragos, and then dropped. Why would a reporter with such an incendiary story just sit on it?

While I suspect the reporter alleging that Lam had ordered indictments before her departure may have been speculating (it was a common speculation at the time), I'm most curious about the Main DOJ leak. The clique at Main DOJ had been panicking about public coverage of Lam's resignation since mid-January. In early February, Rahm Emmanuel and others requested that Lam be made a special prosecutor on the Wilkes case. Geragos' TV reporter would have you believe that it was the leaks--and not the larger USA Purge scandal--that forced Main DOJ to back off of any intervention into the Wilkes indictment.

Comments

I am not buying that Lam or any of her people did any leaking that would be germane to any Motion to Dismiss. If Lam et. al. did any leaking, it was of nothing more than indictments were pending and made so that DOJ main did not sweep the entire thing away. This is, of course, just a hunch. I will say this, and it pains me to say this because he is a very nice guy, but I don't know about Wilkes' choice of lawyer. Geragos has a flashy reputation, but it is not backed up by his work product. His performance on Winona Ryder's case was horrid, and his work on Peterson only slightly better. Believe it or not, I think that with good lawyering, Scott Peterson was imminently acquittable. Michael Jackson was going down the tube at light speed until he canned Geragos in favor of Tommy Mesereau, who is much more of a free spirit than a TV Larry King type of guy, but is one hell of a trial lawyer. To be honest, Geragos' biggest "win", Susan McDougal, was not handled particularly well either. It was Mark's father that was considered the the shrewd litigator of the family business, but he has long been out of the picture. This was a long detour to get to the point that this Motion to Dismiss is going nowhere. Not a chance. Unless the pleading are framed far different than has been reported here, it is not even phrased in the proper legal terms. This type of motion should be based upon the concept of actual prosecutorial misconduct. The burden requires a showing of not only actual, as opposed to potential, prejudice; but also that said prejudice obviates the ability to receive a fair trial. The junk here ain't even close.

His challenge to CIPA is even more, um, creative. Back in March he began to say he didn't want to go through a background check to get a security clearance, and that the requirement to do so under CIPA was a violation of Wilkes' 6th Amendment. Of course, the prosecution responded that Wilkes' team had to have someone otherwise there could be no discovery. Amid it all, Geragos was alleging that Wilkes had gotten what he believed to be relevant anyway, via other channels. Now he's saying the whole CIPA process is unconstitutional.

Not gonna work, I don't think. I get the feeling perhaps they've decided the whole case against Wilkes (to say nothing of the Cunningham-related indictment) is such a slam dunk, they'll just try smoke and mirrors.

(From the wilds with limited dial-up only.) It smacks of recent cases where the gov't deliberately sabotaged cases. If you can't quash the prosecution, if you can't plant someone incompetent to prosecute it, then taint it. It seems pretty clear that the leaks are coming from main DOJ. Maybe the leak to Geragos that weren't printed didn't really come from reporters. Where have we heard "I heard it from reporters" before?

OK, I am playing the conspiracy and dirty tricks card... What would prevent various people from calling Wilkes, et al, to convey information under the guise of being reporters? Sounds like a Rove trick to cast major doubt on Lam and shut down the prosecution. Nothing was ever reported in the media about the various pieces of information.

Alternatively, could there be some media people who were enlisted to 'help' in this situation? Sadly, it appears that money has done a lot of talking in the past few years...

I agree with Mimikatz that leaks are much more likely to be coming out of DOJ Main; and I'll throw the CIA in there as a possibility too. I was trying to say that above, but was a little scatterbrained and inarticulate. EW, "not wanting to go through a background check" is not going to help any argument Geragos could make. In my opinion, you can't ethically take on this kind of case with that view, because the first thing you want to do is be cleared and start demanding everything under the sun; if you don't, it gives the govt. to many angles to hide behind. However, you might be surprised to hear, I think there is some merit to a Sixth Amemdment challenge to CIPA; in fact, at one point I had exactly such a motion prepared and ready to go in a case, but the issue was limited and was resolved. Under the Sixth, a defendant has the right to "confront" witnesses against him. This is known as the "confrontation clause", and courts have generally held that it means a defendant has the right to meaningfully see, confront and cross-examine all evidence supporting the charges against him. Since a CIPA ruling can tend to hold certain evidence not be disclosed or presented, this could be seen as violative of the Sixth Amendment confrontation clause. This type of argument is VERY fact specific, however, and it, again, does not look like it has been properly set up here. Sure isn't going to fly if your lawyer won't even be cleared to where he could see the evidence in the first place.

Has anyone raised the thought that this might be sabotage from the DOJ itself, or from someone in another area of the executive branch tipped off by the DOJ?

The drain this whole thing is circling is the Vice President's office, btw -- the naming of Porter Goss and then the Goss elevation of Foggo, the Mitchell Wade & Brent Wilkes relationship and that amazing contract out of the blue for the VP's office that then paid for the DukeStir ...

This is like watching a movie where you already really know whodunnit -- the suspense is whether or not they'll be able to get away with it.

Let me rephrase the above, the are two constitutional challenges to CIPA. One is that it is unconstitutional as applied to your case and facts; Geragos is not even close on this one. The other is that it is inherently unconstitutional on it's face. That is a much broader argument, and therefore much less likely to be granted. In fact, a trial court just isn't ever going to go there; you would have to appeal it all the way to the Supremes to have any hope. As stated above, I think there is a plausible argument in this regard; however, I don't think it would be granted.

The odd thing about the news reports that the indictments were imminent was that it was first reported in the Wall Street Journal and not in the San Diego Union Tribune or North County Times. SDUT broke the Cunningham story- the SD USA said Cunningham would have gotten away with it without the story in the SDUT. So, it seemed really odd that the story of the imminent indictment was leaked to WSJ.

Wilkes must have gotten a "heads up" on the "imminent indictment" some time before Dec. 11, 2006. On that date, he and his wife file for "legal separation with UCC." California is a community property state, and all of Wilkes debts and fines would also be his wife's responsiblity if they were married. So, to protect some of the assets, they filed for separation. I suppose the plan is Wilke's wife is entitled to half his stuff before the feds take anything. Cunningham's wife filed AFTER he was indicted and missed out.